Gaining Momentum

The smoke-free multi-unit housing trend in Canada is gaining momentum as more landlords and housing providers realize the many benefits of a no-smoking policy. However, some stakeholders in the housing sector are under the mistaken impression that no-smoking policies are discriminatory.

The Ontario Human Rights Code protects people from discrimination on protected grounds such as disability, family status, age, race, sexual orientation, income, etc. in areas of provincial jurisdiction such as housing and education. While some may worry that no-smoking policies are discriminatory, there are two sides to the smoking and discrimination story. Case law is emerging in which residents of multi-unit dwellings cite discrimination because of chronic health conditions made worse by involuntary exposure to second-hand smoke in their own homes.

Are no-smoking policies in multi-unit dwellings discriminatory?

Landlords and housing providers have the choice to adopt a no-smoking policy. Such a policy could prohibit smoking in private units, could include a ban on smoking on balconies, patios and in common-use outdoor areas, or could even extend to the entire property. To clarify, a no-smoking policy:

• Does not prohibit smokers from renting or buying accommodation;
• Does not mean people will be evicted simply for being smokers; and
• Does not force people to quit smoking.

Smoke-Free Housing Ontario / The Non-Smokers’ Rights Asso­ciation is not currently aware of any Canadian legal case where a landlord’s no-smoking policy has been challenged on the basis of discrimination. Furthermore, given the existing case law on smok­ing and discrimination, it appears highly unlikely that any future challenges would be successful. Residents of smoke-free multi-unit dwellings are free to step outside for a cigarette any time they choose thus avoiding the potentially disabling effects of serious nicotine withdrawal.

The duty to accommodate

Under the Ontario Human Rights Code, landlords and housing providers have the duty to accom­modate residents who have been discriminated against up to the point of undue hardship. In 2009 the OHRC published guidelines to help improve equal access to rental housing in Ontario. The document, Policy on Human Rights and Rental Housing, is “Canada’s first comprehensive look at how barriers to housing can be identified and eliminated.”

Section 6.1 of the report deals with smoking in rental housing, and reaches the following conclusion: given the inherent risks associated with smoking, a housing provider may have little or no obligation to accommodate a ten­ant’s need to smoke when to do so would amount to undue hard­ship, for example, by negatively affecting the health and safety of other tenants.

For the sake of argument, it is possible that a judge or arbitrator might accept that a landlord’s no-smoking policy is discriminatory. However, facilitating an addiction to nicotine by simply striking down a no-smoking policy and allowing other residents to continue being involuntarily exposed to second-hand smoke would not generally be regarded as reasonable accommodation of the smoker. Reasonable accommodation could potentially involve the creation of an outdoor designated smoking area or access to the provision of smoking cessation resources. There are many ways of managing an addiction to nicotine that do not pollute the air and involuntarily expose others to second-hand smoke.

Discrimination cuts both ways

Residents of multi-unit dwellings with health conditions made worse by exposure to second-hand smoke are beginning to speak up and protect themselves using human rights leg­islation. Smoke-Free Housing Ontario / The Non- Smokers’ Rights Association is aware of five such cases, all from British Columbia, where residents have claimed that their landlords or condominium corporations have discriminated against them by failing to provide smoke-free housing. One case, involving a tenant living in social housing provided by the Greater Vancouver Housing Corporation, has been settled. Unfortunately, a gag order was put into place and very few details are available except that the complainant is still living in her original unit and the building is now 100% smoke-free. The other cases have either been settled or are awaiting a hearing and no other details are available.

Conclusion

Access to smoke-free housing remains extremely poor in Ontario. Concern that no-smoking policies may be discriminatory will ham­per an increase in supply. Canadian case law suggests that it is unlikely that smoking would be considered a disability in the context of a landlord’s no-smoking policy. Further, facilitating an addiction to nicotine by simply striking down a no-smoking policy and allowing other residents to continue being involuntarily exposed to second-hand smoke would not generally be regarded as reasonable accommodation of a resident smoker.

Moreover, there is emerging human rights case law involving resi­dents of multi-unit dwellings claiming that their housing providers have discriminated against them for failing to provide smoke-free housing. Canadians are starting to demand smoke-free housing and landlords should pay attention. The risk of maintaining the sta­tus quo and not providing a smoke-free choice appears far greater than the risk of possibly discriminating against smokers.

Thanks to Pippa Beck, Policy Analyst for the Non-Smokers’ Rights Association for this article.

For more information, including a legal opinion, case law examples and a guide to adopting a no-smoking policy, visit www.smokefreehousingon.ca